IN THE CASE OF: BOARD DATE: 15 March 2022 DOCKET NUMBER: AR20210009485 APPLICANT REQUESTS: reconsideration of his earlier request to upgrade his characterization of service from other than honorable conditions to general, under honorable conditions and a telephonic appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) * Letter from the VA FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140007786 on 11 December 2014. 2. The applicant states he developed post-traumatic stress disorder (PTSD) as a result of 11 months in Vietnam. He completed over 40 combat missioned and earned the Combat Infantryman Badge. He directly witnessed two Soldiers killed in action by the enemy. He was never given any mental health counseling or treatment following either event. This led to a trend of inappropriate actions that were not characteristic of him, prior to the deaths. He was further exposed to Agent Orange and developed Prostate Cancer, diabetes, neuropathy, tinnitus, GERD, anxiety, and depression. 3. The applicant enlisted in the Regular Army on 30 June 1969. He held military occupational specialty 11B (Infantryman). 4. He served in Vietnam from 15 January 1970 to 22 November 1970. He was assigned to Company D, 1st Battalion, 4th Infantry Division. 5. His record contains sufficient evidence to support correction of his DD Form 214 by amending item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) by deleting his Vietnam Service Medal with one bronze service star and adding: * Vietnam Service Medal with three bronze service stars * Meritorious Unit Commendation * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar (M-60) 6. He accepted nonjudicial punishment on/for: * 2 January 1970; being absent without leave (AWOL) from 16 December 1970 to 31 December 1970; his punishment consisted of reduction to private (PVT)/E-1 * 2 April 1970; being AWOL from 1 March 1971 to 2 March 1971 7. The complete facts and circumstances surrounding the applicant’s discharge are unavailable for the Board to review. Specifically, his record is void of his DD Form 458 (Charge Sheet), which would indicate the charge(s) and specification(s) preferred against the applicant; his voluntary request for discharge in lieu of trial by court-martial, his chain of command recommendations, and the approving authority’s separation action. 8. On 12 October 1971, he was discharged from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), Chapter 10, for the good of the service with an under conditions other than honorable characterization of service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 11 months, and 2 days of active service. It also shows he was awarded or authorized: * National Defense Service Medal * one overseas service bar * Vietnam Service Medal with one bronze service star * Vietnam Campaign Medal with 1960 Device * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Combat Infantryman Badge (1st Award) 9. The applicant provides a statement in support of his claim to the VA and a letter from the VA indicating ways the VA can assist. 10. The applicant previously applied to the ABCMR for an upgrade of his characterization of service. On 14 December 2014, the Board determined the evidence presented did not demonstrate the existence of a probable error or injustice. 11. By regulation, a Soldier who has committed an offense or offenses, the punishment for which under the UCMJ, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. 12. Also by regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 13. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. 14. MEDICAL REVIEW: Applicant is applying to the ABCMR requesting an upgrade of his Under Other Than Honorable Conditions (UOTHC) discharge to General, Under Honorable Conditions. Applicant asserts Post-Traumatic Stress Disorder (PTSD). The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his separation military documentation, the active duty medical record (AHLTA), and the VA electronic medical record (JLV). a. The ABCMR ROP outlines the details and circumstances of the applicant’s military history. He enlisted in the Regular Army on 30 June 1969 and served in Vietnam as an Infantryman. Applicant was discharged on 12 October 1971 under the provisions of AR 635-200, Chapter 10, For the good of the service with an UOTHC characterization of service. The complete facts and circumstances surrounding the applicant’s discharge are unavailable for the Board to review. Specifically, his record is void of his DD Form 458 (Charge Sheet), which would indicate the charge(s) and specification(s) preferred against the applicant. b. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review. Chapter 10 examination conducted on 30 August 1971 states “no psychiatric disease demonstrated on this examination” and cleared him for separation. c. Applicant is not service connected and there are no VA electronic medical records (JLV) available for review. Applicant submitted no in-service or post-service medical documentation. d. After review of all available information at this time, the specific circumstances that led to applicant’s discharge are unknown and therefore, mitigation cannot be determined. There is also insufficient evidence to support that the applicant had a behavioral health condition at the time of service. e. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No. Applicant asserts PTSD, but there is no medical documentation to support his assertion. (2) Did the condition exist or experience occur during military service? (a) No. There is also insufficient evidence to support that the applicant had a behavioral health condition at the time of service. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A. (4) After review of all available information at this time, the specific circumstances that led to applicant’s discharge are unknown and therefore, mitigation cannot be determined. There is also insufficient evidence to support that the applicant had a behavioral health condition at the time of service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140007786 on 11 December 20142. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE: A review of the applicant’s records shows he is authorized additional awards not reflected on his DD Form 214. As a result, amend his DD Form 214 by deleting the Vietnam Service Medal with one bronze service star and adding: * Vietnam Service Medal with three bronze service stars * Meritorious Unit Commendation * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar (M-60) REFERENCES: 1. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 (Discharge for the Good of the Service) states an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 2. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the 4th Infantry Division was cited for award of the Meritorious Unit Commendation by DA General Order 51 from 1 November 1968 to 30 June 1970. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 6. AR 15-185 (Army Board for Correction of Military Records (ABCMR)), prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210009485 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1